Bracewell v. Bracewell

Felton, Chief Judge. In the trial of an action instituted by a guest passenger in an automobile against his host driver and the driver of another automobile to recover damages for the alleged independent and concurring negligence of the two drivers alleged to be the proximate cause of plaintiff’s injuries, it was error requiring the grant of a new trial for the court to charge the jury that the standard of care and diligence required by both and all parties in a case is the same, that of ordinary care and diligence, where the attention of the jury was not called to the erroneous charge and the erroneous charge was not withdrawn, and a subsequent correct charge (or charges) does not cure the error. Exec. Comm. of Baptist Conv. v. Ferguson, 213 Ga. 441 (99 SE2d 150). For various decisions to this same effect see Code Ann. § 70-207, catchwords “Directing Attention,” and “Correction.” The exception in ground 2 of the amended motion to the court’s charge on concurring negligence is without merit and was properly overruled. Ground 3 is incomplete in that it does not contain evidence or show where in the record it could be found, which shows the charge complained of is erroneous or harmful. Submitted March 1, 1965 Decided May 4, 1965 Rehearing denied May 27, 1965. H. Dale Thompson, for plaintiff in error. Smith, Swift, Currie, McGhee & Hancock, Richard H. Monk, Jr., James B. Hiers, Jr., Jones & Douglas, B. B. Hayes, contra. The exception to the court’s answer to a juror’s question involves a question which will not likely occur on another trial and does not require a ruling on ground 4. Ground 5 of the amended motion for a new trial is incomplete in that it does not show the ground or grounds of the motion for a mistrial, the refusal by the court to grant which is alleged to have been error. Grounds 6 and 7 are also incomplete in that they do not allege the grounds upon which the motions for a mistrial were made. The general grounds are without merit. The court erred in not granting a new trial. Judgment reversed. Jordan and Russell, JJ., concur.